At Josh and Mak International, we understand the intricacies of Islamic law and its impact on matters of inheritance. Pakistani Inheritance is based entirely on Shariah (Islamic law).A common query we often get from members of the public is about how their shares will be divided under Pakistani law which is basically Islamic law.
Our team of experienced lawyers specializes in navigating the complexities of Islamic inheritance rules, providing expert guidance to our clients. In this article, we shed light on the key aspects of Islamic inheritance laws, highlighting the importance of seeking professional advice to ensure a fair and compliant distribution of assets.
Islamic law, also known as Shari’a (or Shariah) law, encompasses a wide range of legal matters, including family issues, succession, property, and criminal law. While Islamic law shares common elements across different jurisdictions, the sources of jurisprudence can vary, leading to variations in its application.
One fundamental aspect of Islamic inheritance law is the strict and rigid rules that govern the division of a Muslim’s estate among their heirs upon death. Testamentary freedom (the ability to make a Will) is limited to one-third of the deceased’s net estate after accounting for debts and funeral expenses. The remaining two-thirds are distributed in accordance with Shari’a principles.
The distribution of the estate under Shari’a rules depends on the Islamic sect to which the deceased belonged. Typically, it follows a hierarchical structure of three classes of heirs:
- Quranic Heirs or Sharers: This first class of heirs includes the husband/wife, son, daughter, father, and mother. Each heir is entitled to specific shares, although some shares may exclude others. For example, a husband may inherit half of his deceased wife’s estate if she has no children, or a quarter share if she has children. Similarly, a wife may inherit a quarter share of her deceased husband’s estate if she has no children, or one-eighth if she has children. Sons generally inherit twice as much as their sisters.
- Residuary Heirs: In the absence of Quranic heirs, the estate passes to the second class of heirs, which includes grandparents, siblings, nephews, and nieces. Specific rules govern half-brothers, half-sisters, step-parents, and other relatives within this group.
- Further Relatives: If no Quranic heirs or residuary heirs exist, the estate may pass to a third class of heirs, which includes paternal and maternal aunts, uncles, and their descendants.
It is important to note that adopted children are not considered primary heirs under Islamic law. However, the deceased can leave them a bequest from the one-third portion of their estate, known as testamentary freedom. Additionally, non-Muslims who are Christians or Jews, referred to as the “Followers of the Book,” may inherit from the testamentary portion of the estate, provided it aligns with the deceased’s wishes and complies with Shari’a requirements.
Here are some key points about succession of Grandchildren of Deceased heirs in Pakistani Law :
- Granddaughter’s Entitlement: If the daughter of a person (propositus) dies before the opening of succession, her daughters (granddaughters) are entitled to inherit the share that their mother would have received if she had survived until the death of the propositus. This means that the granddaughters step into their mother’s place and inherit her portion.
- Heirs of Predeceased Children: According to the provisions of Section 4 of the Muslim Family Laws Ordinance, 1961, the children of a predeceased son or daughter have the right to inherit the property of their grandfather upon his death. This provision is considered valid and not contradictory to the principles of Islam.
- Limitations on Increase: The entitlement of children (grandchildren) of a predeceased son or daughter is limited to their respective shares as determined by the applicable laws. Their shares cannot be increased or augmented in any way beyond what they are entitled to receive.
- Inheritance of Predeceased Daughter’s Children: The children of a predeceased daughter of the last full owner will inherit the share that their mother would have received if she were alive at the time of the opening of the succession. This implies that the grandchildren of the propositus inherit their mother’s portion as if she were alive during the distribution of the inheritance.
At Josh and Mak International, we emphasize the importance of seeking professional advice to navigate the intricacies of Islamic inheritance laws. Our team of expert lawyers can guide you through the process, ensuring a fair distribution of assets while adhering to the principles of Islamic law. Whether you are a Muslim or a non-Muslim with concerns regarding inheritance matters, we are here to provide tailored solutions based on your specific circumstances.
In conclusion, understanding Islamic inheritance laws requires expert knowledge and guidance. With our extensive experience in Islamic law, we can help you navigate the complexities of inheritance matters and ensure a smooth and compliant distribution of assets. Contact us today to discuss your situation and benefit from our specialized legal services.
Islamic Inheritance Jurisprudence: A Comprehensive Exploration
Islamic inheritance jurisprudence, known as Mīrāth in Arabic, is a field that has been meticulously developed over centuries. It is a branch of Islamic law, technically referred to as ʿilm al-farāʾiḍ (“the science of the ordained quotas”). This area of law has not only been a subject of extensive legal interpretation but has also played a significant role in the development of Islamic mathematics.
The Qur’anic Foundation
The Qur’an serves as the cornerstone for Islamic inheritance laws, introducing revolutionary changes to pre-Islamic systems. It brought about general improvements in the treatment of women and family life, and also introduced additional heirs who were not entitled to inheritance in pre-Islamic times. The Qur’an explicitly mentions nine relatives as heirs, six of whom are female and three male. This was a significant departure from the old customs that often excluded women and other male relatives like half-brothers from the mother’s side.
Women’s Rights in Islamic Inheritance
The Qur’an improved the status of women by clearly defining their share of inheritance. It also completely forbade the practice of inheriting widows, a common practice in pre-Islamic societies. While it is true that men generally receive a larger share, this is often justified within the context of the broader Islamic legal system, which places the financial responsibility of caring for the family upon men. Women, upon marriage, are entitled to a “dowry” from their husbands, which serves as an advance on their inheritance rights.
The Role of Hadith and Fiqh
The Hadith and Fiqh have further elaborated on the principles laid down in the Qur’an. Muslim jurists have used these foundational texts to expound upon the laws of inheritance, using methods of juristic reasoning like Qiyas. Over time, this has led to the addition of more heirs, such as the paternal grandfather, maternal grandmother, and agnatic granddaughter. These developments have resulted in minor differences between the various Sunni maddhabs and also between Sunni and Shia jurisprudence.
Modern Developments
In contemporary Muslim countries, a mixture of different schools of jurisprudence is often in effect, along with significant reforms to the traditional system. One of the major achievements has been the codification of inheritance laws, which has helped in streamlining the process and making it more transparent.
The Mathematical Aspect
Islamic inheritance laws have also had a profound impact on the field of mathematics. The need to divide inheritance according to Islamic law led to the development of algebra by Muhammad ibn Mūsā al-Khwārizmī. His work laid the foundation for solving problems related to Islamic inheritance using algebraic equations.
Islamic inheritance jurisprudence
Islamic inheritance jurisprudence is a complex but well-structured system that has evolved over centuries. It is deeply rooted in the Qur’an and has been further developed through Hadith and Fiqh. While it has faced its share of controversies and challenges, it remains a system that aims to be just and equitable, taking into consideration the social, economic, and familial responsibilities of each heir. The system not only provides a legal framework for the division of assets but also serves as a fascinating intersection between law, religion, and mathematics.
Islamic inheritance is a deeply intricate system designed to distribute wealth in a fair and equitable manner following the passing of a Muslim individual. The principles governing Islamic inheritance are primarily derived from religious texts, and have been meticulously structured to ensure a balanced distribution of assets among heirs, thus preventing the concentration of wealth. The importance of understanding and adhering to these rules has been emphasised by Prophet Muhammad (PBUH), underscoring the integral role of inheritance in Islamic law and society.
Before delving into the Islamic framework of inheritance, it’s insightful to examine the pre-Islamic system which largely favoured male agnates, excluding females and cognates from inheritance. The traditional system prioritised descendants over ascendants and employed per capita distribution among male agnates equidistant from the deceased. This customary agnatic system, however, underwent significant modification with the advent of Islam, aiming to ameliorate the position of female relatives in inheritance matters.
Islamic inheritance law, as articulated in the Holy Quran, does not specifically outline the shares of male agnatic relatives, but it does establish that a male’s share is twice that of a female’s. Sunni jurists interpret this as a modification, rather than a replacement, of the old agnatic system, creating a comprehensive system by integrating Quranic laws with customary laws. In contrast, Shia jurists have based their inheritance system solely on Quranic injunctions, eschewing the old customary laws entirely.
At the heart of Islamic inheritance are three pivotal elements: the deceased (moa’ris), the legal heir (waris), and the property left behind (tark’a). These elements are indispensable for the application of inheritance rules. Upon the death of the moa’ris, the shares of the heirs are automatically determined, albeit the actual distribution occurs subsequently. It’s noteworthy that neither Sunni nor Shia law recognises a distinction between ancestral and self-acquired property, with a few exceptions concerning a childless widow and the eldest son.
The entitlement to inheritance is predicated on several factors: consanguinity, affinity, and, historically, slavery (though no longer applicable). Consanguinity encompasses descendants (children and their offspring), ascendants (parents and their progenitors), and collaterals (siblings). Affinity, on the other hand, necessitates a valid marriage between the deceased and the spouse at the time of death. Furthermore, the existence of waris at the time of moa’ris’ death, alongside the absence of impediments, are additional prerequisites for the entitlement and distribution of inheritable property.
Islamic inheritance law epitomises a sophisticated blend of divine injunctions and customary practices, meticulously crafted to ensure fairness and prevent wealth concentration. Its nuanced rules and the emphasis placed by Prophet Muhammad (PBUH) on learning them underscore the importance of inheritance in fostering economic equality and social harmony within the Muslim community. By understanding both the pre-Islamic and Islamic systems of inheritance, one can better appreciate the profound transformation and the enduring quest for justice embodied in Islamic law.
Upon the passing of a Muslim individual, the distribution of their estate follows a specific order as dictated by Islamic law. Initially, financial obligations such as funeral expenses, debts, service charges accrued during the last days, and the execution of any bequest or will are addressed. Once these obligations are met, the focus shifts to the distribution of the remaining estate among the legal heirs as per Shari’a law.
Shari’a law dictates a structured classification of heirs, which varies between Shia and Sunni interpretations. In Shia law, heirs are categorised into two primary groups: heirs by consanguinity (blood relations) and heirs by marriage. The consanguine heirs are further subdivided into three classes. Class I comprises parents, children, and other direct descendants. Class II includes grandparents, brothers, sisters and their descendants, while Class III encompasses paternal and maternal uncles and aunts along with their descendants. In this system, the proximity of relation to the deceased plays a pivotal role; the nearer in degree excludes the farther. For instance, heirs in Class I take precedence over those in Classes II and III.
Conversely, Sunni law delineates legal heirs into three categories: sharers, residuaries, and distant kindreds. Sharers are designated by the Holy Quran and are granted fixed shares of the estate. While the Quran mentions nine sharers, Sunni jurists have extended this to twelve by analogy, encompassing maternal grandmother, paternal grandfather, and agnatic granddaughter. Notably, among these sharers, four are deemed ‘primary heirs’—parents, spouse, son, and daughter—given their intrinsic right to inherit, barring any Shari’a impediments. The distribution among sharers adheres to specified shares, albeit certain circumstances may necessitate proportional adjustments to ensure equitable distribution.
Residuaries represent the next tier of heirs, inheriting the residue of the estate post the allocation to sharers. This category encompasses descendants, ascendants, descendants of the father (including full and consanguine siblings), and descendants of the true grandfather (such as paternal uncles and aunts). They inherit in the absence or after the allocation to sharers, thus playing a crucial role in the distribution process.
Lastly, distant kindreds are cognate relatives who stand to inherit only in the absence of both sharers and residuaries. They embody an extended network of blood relations, ensuring a broader distribution of wealth within the family structure.
The intricacies of Islamic inheritance reflect a meticulous system aimed at ensuring a just and equitable distribution of wealth, honouring both immediate and extended familial ties. The variance between Shia and Sunni classifications underscores the rich diversity within Islamic jurisprudence, each striving for fairness and adherence to religious principles in the solemn act of inheritance.
The Holy Quran provides a detailed framework for inheritance, ensuring a fair and equitable distribution of assets among the heirs of the deceased. The verses elucidate the rights and shares of various family members, affirming the importance of adherence to these divine instructions.
In the verse concerning the right of inheritance for both men and women, the Quran underscores an obligatory share for both genders from what their parents and close relatives leave behind, irrespective of the amount. This is a fundamental principle establishing gender inclusivity in inheritance matters.
Furthermore, the Quran advocates for consideration and kindness towards other relatives, orphans, and the needy present at the time of asset division, urging the heirs to provide for them from the estate. This gesture not only reflects compassion but also promotes social responsibility.
The shares of sons, daughters, fathers, and mothers are meticulously delineated in another verse. A male child is to receive a share equivalent to that of two females, showcasing the 2:1 ratio commonly referenced in Islamic inheritance law. However, if only daughters are present, they collectively inherit two-thirds of the estate, with a sole daughter inheriting half. Parents are each allocated a sixth of the estate if the deceased leaves behind children; the mother’s share varies in scenarios where the deceased has siblings but no children.
The inheritance rights of spouses are also clearly defined. In the absence of children, a husband inherits half of what his wife leaves, and a wife inherits a quarter from her husband. These proportions are adjusted to a quarter and an eighth, respectively, if there are children. Additional provisions are made for scenarios involving siblings of the deceased, establishing a balanced distribution among them.
In instances of childless death, the Quran provides a ruling concerning the inheritance rights of siblings. A sole surviving sister is entitled to half of the deceased’s estate, while two or more sisters share two-thirds. In mixed-gender sibling scenarios, the inheritance share reverts to the 2:1 ratio in favour of males.
Lastly, a verse emphasises that all heirs should receive their rightful share as per the divine ordinance, including those bound by oaths, reinforcing the comprehensive and just nature of Quranic inheritance law.
The articulation of inheritance rules in the Holy Quran serves as a testament to the structured and equitable approach towards asset distribution in Islamic law. By adhering to these divine guidelines, individuals ensure the fair treatment of all heirs, reflecting the values of justice and compassion inherent in Islamic teachings.
The delineation of Islamic inheritance as described unfolds in a meticulously structured manner, addressing the paramount questions concerning the successors, the actual heirs, and their respective shares. The verses from the Holy Quran lay the foundation for the categorisation and distribution of the deceased’s estate among the heirs, reflecting the divine wisdom and justice inherent in Islamic law.
Initially, the heirs are grouped into two categories: the first category embodies the immediate family members including the spouse, children, parents, and grandchildren (specifically the offspring of a deceased son). The second category encapsulates the extended family, such as grandparents, siblings, uncles, aunts, nephews, nieces, contingent upon the absence of certain heirs from the first category.
The share allocations are meticulously delineated based on the familial relation and the existence or absence of other heirs. For instance, the husband’s share varies based on the presence of children, as does the wife’s. The shares of daughters are defined in relation to the presence of sons or other daughters, emphasizing a balance in distribution.
Parents and grandparents’ shares are articulated with a consideration for the presence or absence of descendants, showcasing a layered approach to ensure fairness. The shares of siblings, whether full, consanguine or uterine, are addressed with a nuanced understanding of their positions in the family hierarchy, in relation to the presence of other heirs.
Furthermore, the shares of more distant relatives like uncles, aunts, nephews, and nieces are determined based on the absence of closer relations, demonstrating a comprehensive approach to encompassing a broader family network in the inheritance process.
The detailed rules governing the inheritance shares of each heir, from spouses to distant relatives, reflect a profound commitment to equitable distribution, honouring both immediate and extended familial ties. This structured approach not only ensures a fair allocation of assets but also embodies the values of compassion, justice, and familial responsibility enshrined in Islamic teachings.
Each rule, as derived from the Quranic verses, serves as a guiding principle, facilitating the process of inheritance in a manner that upholds the sanctity and harmony within the familial structure. Through these divine ordinances, the legacy of the deceased is honoured, and the bonds of kinship are fortified, ensuring a just and seamless transition of assets across generations.
Here are the detailed rules for Islamic inheritance as gleaned from the provided text, broken down point-wise for clarity:
- Classification of Heirs:
- First Category Heirs:
- Spouse:
- Husband: Inherits 1/4 of the estate if there are children, and 1/2 if there are no children.
- Wife: Inherits 1/8 of the estate if there are children, and 1/4 if there are no children. If there are multiple wives, they collectively share the 1/8.
- Children:
- Son: Inherits twice the share of a daughter.
- Daughter: Inherits half of the son’s share. If she is the only daughter with no son, she gets 1/2 of the whole property. If there are multiple daughters with no son, they share 2/3 of the whole property equally.
- Parents:
- Father: Inherits 1/6 if there are children. If no male descendant is present, he gets 1/6 plus the residue. If no entitled descendant is present, he gets the residue.
- Mother: Inherits 1/6 if there are children or siblings. If no children, siblings, father, or spouse are present, she gets 1/3. If father, spouse, brother, or sister are present, she gets 1/3 of the residue.
- Grandchildren (Son’s Children):
- Son’s Son and Son’s Daughter: Only inherit if the son is already deceased.
- Spouse:
- Second Category Heirs:
- Grandparents:
- Both paternal and maternal grandparents are included.
- Siblings (only when there is no father and son):
- Brothers and Sisters: Their shares are discussed under various scenarios in the points below.
- Uncles and Aunts (only when grandparents of either kind are missing).
- Nephews and Nieces (only when brothers and sisters are absent).
- Grandparents:
- First Category Heirs:
- Shares of Each Heir:
- Uterine Brother/Sister: Inherit 1/6 if there’s only one, or 1/3 collectively if more than one, in the absence of descendants or ascendants who can inherit.
- Son’s Daughter: Inherits 1/2 when there is no daughter/son and no son’s son. If they are more than one, they share 2/3 equally among them. With a son’s son, she becomes a residuary.
- Full Sister: Inherits 1/2 or 2/3 collectively with other full sisters under specific conditions. Becomes a residuary in the presence of a full brother.
- Consanguine Sister: Inherits under specific conditions, with shares varying based on the presence of other heirs.
- True Grandmother: Inherits 1/6 in the absence of parents or a closer true grandfather.
- True Grandfather: Inherits 1/6 in the absence of a father or a closer true grandfather, or as a residuary in the absence of any male descendant.
- Son’s Son’s Daughter: Inherits 1/2 or 2/3 collectively under specific conditions, or 1/6 when there’s only one daughter or son’s daughter.
- Uncles/Aunts: Inherit in the absence of all sharers including grandparents, with a distribution ratio of 2:1 between uncle and aunt.
- Nephews/Nieces: Inherit in the absence of siblings and other nearer heirs of the first category, with a distribution ratio of 2:1 between male and female.
These rules outline the systematic and detailed approach towards inheritance in Islamic law, ensuring a fair and just distribution of assets among the heirs, based on their relationship to the deceased and the presence or absence of other heirs.
Unveiling The Nuances: Islamic, Hindu, and Various Islamic Sects’ Inheritance Laws
In the labyrinth of inheritance laws, each culture and religion holds its unique threads of tradition, legality, and familial honor. Among them, the laws under Islamic and Hindu jurisprudence show a fascinating blend of ancient customs intertwined with modern legal frameworks. This essay unfolds the veils of Islamic and Hindu inheritance laws, with a keen eye on the Islamic sects of Shia and Hanafi.
The process of inheritance kicks in with the unfortunate event of death, and if the deceased has not left a will, the distribution of their estate follows the traditional laws pertaining to their religion or sect. Under Islamic law, the absence of a will directs the entire estate to the deceased’s heirs. This is a stark contrast to the Hindu law as elucidated in Mitakshara, where a Hindu individual has a birthright share in the ancestral property, a privilege not extended to Muslims.
One of the commendable aspects of Islamic inheritance law is its impartial treatment of different types of properties. Whether ancestral or self-acquired, the law applies uniformly, unlike Hindu law which creates a distinction. Moreover, a Muslim female inherits the ancestral property as her own, a liberty not granted to Hindu females.
As we delve deeper, the Shia and Hanafi laws within the Islamic realm unfold more nuanced differences. While Shias recognize only nine sharers in inheritance, Hanafis acknowledge twelve. The partial acceptance of the rule of primogeniture by Shias, in hubua cases, stands in contrast to Hanafis who discard this rule entirely. Additionally, the rights of a childless widow and the validity of a will in favour of a legal heir vary significantly between these two sects. This divergence extends further, with Hanafi and Shafai law showing variations in the status of a full brother, recognition of successors by contract, and the exclusion or sharing rights of brothers and sisters by a grandfather.
The richness of Muslim inheritance law lies in its detailed provisions for distributing property among a deceased’s legal heirs. Unfortunately, the complexity often becomes a maze for individuals, exacerbated by varying interpretations of the Holy Quran by different Ulema-e-Deen and Islamic scholars. According to Sharia, the succession process commences immediately upon death, granting legal heirs their respective shares unconditionally. This law emphasizes the principle that ‘a living person has no heir’, thus a possible heir cannot stake a claim in the estate of a living person. Furthermore, disentitling someone by ostracism (aaq nama) doesn’t negate their entitlement as a legal heir post the disowner’s demise.
The slight dissimilarities between Shia and Sunni laws add another layer to the multifaceted Islamic inheritance law. Despite the complex landscape, this exposition aims to provide a beginner with a basic understanding of the diverse aspects of Muslim inheritance law. For those seeking a deeper comprehension, delving into classical works on inheritance is recommended.
This journey through the intricacies of Islamic, Hindu, and Islamic sects’ inheritance laws opens a window into how tradition, religion, and modern legal frameworks intertwine to govern the sacred act of passing down one’s legacy to the next generation. The canvas of inheritance law is vast and variegated, reflecting the rich tapestry of the cultures and beliefs it represents.
Q & A: Where there are children of pre-deceased siblings, in the line of inheritance
Q: What is the legal status of children of pre-deceased siblings in terms of inheritance according to the 2023 MLD 1354 case?
A: In this case, the children of pre-deceased siblings are categorised as “distant kinder.” They are only entitled to inherit a share when there are no sharers and residuaries. If the brothers and sisters of an unmarried and issueless deceased have also died, then distant kinder could inherit.
Q: Can the legal heirs of a deceased wife inherit from her pre-deceased brother’s estate?
A: Yes, according to the same 2023 MLD 1354 case, the legal heirs of a deceased wife, who was the daughter of a pre-deceased brother of the deceased owner of an estate, would also get their proportionate inheritance in the estate along with other shareholders.
Q: What does the 2018 PLD 129 case say about the inheritance rights of children of pre-deceased siblings?
A: The case clarifies that children of pre-deceased siblings fall under the category of “distant kindred,” who can only inherit a share when there are no sharers and residuaries. In this particular case, there were surviving brothers and sisters, so the children of pre-deceased siblings were not entitled to any share as inheritance.
Q: How does the 2000 SCMR 672 case view the inheritance rights of collaterals of the deceased?
A: In this case, the Supreme Court upheld that whether the deceased was Shia or Sunni, the collaterals of the deceased had no right to inherit any share in the estate left by the deceased.
Q: What does the 1992 SCMR 82 case state about the inheritance rights of children of pre-deceased siblings?
A: According to this case, Section 4 of the Muslim Family Laws Ordinance 1961 allows inheritance to children of pre-deceased sons or daughters to the extent that the son or daughter would have got. Upon the termination of a life estate, children of a pre-deceased daughter would inherit the share which their mother would have got as if she were alive at the time of the opening of the succession.
Q: In the 1992 SCMR 82 case, who would inherit the estate of the last full owner?
A: The last full owner would be succeeded by his heirs, which include the widow, sister, and children of the pre-deceased daughter. The son of a pre-deceased brother would not inherit in this case.
Where the deceased was issueless and at the time of a man’s death he had left behind only one widow and his parents had already died during his lifetime.
The prevailing legal view for a widows position as the sole legal heir is as follows. As she is the only legal heir of the deceased, therefore, while applying the Islamic doctrine of return (Radd), she is entitled for all the movable properties left by the deceased.In the past some legal views have been that only 1/4th of the said movable properties will go to the issueless widow in such a situation as provided under the law.The court will look into the fact that the husband died issueless and his parents had also expired during his lifetime. If despite publication of newspaper notice no other person has come forward to claim himself to be the legal heir of the deceased in any capacity or to object grant of a succession certificate in favour of the widow the doctrine of Radd will come into effect. In such circumstances, firstly she as a widow would inherit from the estate of the deceased 1/4th of the estate as a sharer and the remaining 3/4th will revert to her on the doctrine of return (Radd) as
This being the legal position, the succession certificate will be issued in the exclusive name of the surviving widow as the sole legal heir of the deceased.
Case Law on Mutation of Islamic Inheritance
2013 SCMR 299 SUPREME-COURT
Q: What is the effect of not challenging a mutation of inheritance during the lifetime of the predecessor-in-interest?
A: If the predecessor-in-interest did not challenge the mutation of inheritance during their lifetime, their successors cannot claim a share of the inheritance based on that unchallenged mutation. The High Court may dismiss the suit on the ground of limitation.
2014 YLR 553 QUETTA-HIGH-COURT-BALOCHISTAN
Q: Does the time of recording an entry in the mutation affect the right to sue for declaration?
A: No, the date of recording the entry in the mutation is immaterial. The time for filing a suit for declaration should be counted from when the right to sue accrued and was refused by the other party. The right of inheritance is not affected by the span of time, and the suit is maintainable irrespective of the lapse of time.
2021 CLC 1506 PESHAWAR-HIGH-COURT
Q: Can further legal heirs challenge an inheritance mutation that remained unchallenged during the lifetime of their predecessor?
A: No, if the legal heir was deprived of their right of inheritance and did not challenge this during their lifetime, further legal heirs have no locus standi to challenge the inheritance mutation at a later stage, especially when the property has changed hands multiple times.
2022 PTD 1510 LAHORE-HIGH-COURT-LAHORE
Q: Does the mutation confer any right in any property?
A: No, the mutation does not confer any right in any property. The revenue record is maintained only for the realisation of land revenue and does not confer any title. Upon the death of the predecessor-in-interest, the successors become owners of the property by operation of Personal Law, irrespective of the mutation.
Q & A on Legal Principles of Islamic Succession and Inheritance in Pakistan (grandchildren/ pre-deceased son/daughter)
Q1: What is the current status of Section 4 of the Muslim Family Laws Ordinance, 1961, in light of the Federal Shariat Court’s decision?
Answer: According to the 2023 PLD 6 Peshawar-High-Court case between Mst. Hayat Begum and Rehman Malik, Section 4 of the Muslim Family Laws Ordinance, 1961, still holds the field despite being declared repugnant to Islamic injunctions by the Federal Shariat Court. This is because the decision is currently under appeal before the Supreme Court. As per Article 203-D(2) of the Constitution, the decision of the Federal Shariat Court is not effective until the Supreme Court disposes of the appeal.
Q2: Are grandchildren entitled to inheritance if their parent (the child of the deceased) predeceased the grandparent?
Answer: In the 2023 CLC 355 Lahore-High-Court-Lahore case between Ghulam Farid and Ahmad Khan, it was held that under Islamic Sharia, predeceased children are not entitled to any inheritance. However, by virtue of Section 4 of the Muslim Family Laws Ordinance, 1961, legal heirs of a pre-deceased son or daughter would be entitled to inheritance when the succession re-opens. This section remains in effect pending a decision by the Shariat Appellate Bench of the Supreme Court of Pakistan.
Q3: What is the onus of proof for establishing divorce in matters of inheritance?
Answer: In the 2013 CLC 115 Lahore-High-Court-Lahore case between Mina Bibi and Manak Khan, the court clarified that the onus to prove divorce lies with the party asserting it. In this case, the defendants had to prove that the plaintiff was divorced by the deceased to disqualify her from inheritance. The court found that the defendants failed to provide admissible evidence in accordance with Article 87 of Qanun-e-Shahadat, 1984, and therefore, the plaintiff’s claim to inheritance as the widow was upheld.
Q4: When does the right of succession come into existence?
Answer: According to the case between Ghulam Farid and Ahmad Khan, the right of succession comes into existence only upon the death of the propositus. At that time, if the Muslim Family Laws Ordinance, 1961, is in effect, then Section 4 would apply, allowing legal heirs of a pre-deceased son or daughter to inherit.
Q5: What happens if a person claims to be divorced and thus ineligible for inheritance?
Answer: In the case between Mina Bibi and Manak Khan, it was established that the onus of proof for divorce lies with the party asserting the divorce. If the divorce is not proven through admissible evidence, the claimant remains eligible for inheritance.
Q6: Is there a limitation period for claiming one’s share from inheritance?
Answer: In the case between Ghulam Farid and Ahmad Khan, it was stated that limitation would not preclude a person from getting his or her share from inheritance. The principle of Islamic Law is that succession opens the moment a Muslim dies, and therefore, claims can be made accordingly.
Q7: What are the implications of the Federal Shariat Court’s decision declaring Section 4 of the Muslim Family Laws Ordinance, 1961, as un-Islamic?
Answer: The Federal Shariat Court’s decision has significant implications for inheritance laws in Pakistan. However, it’s important to note that the decision is not yet final, as it is under appeal before the Supreme Court. Until the Supreme Court makes a final ruling, Section 4 remains in effect. This means that legal heirs of a pre-deceased son or daughter are still entitled to inheritance when the succession re-opens, as per the existing ordinance.
Q8: What are the duties that need to be performed when a Muslim dies in the context of Islamic inheritance law?
Answer: Upon the death of a Muslim, four key duties must be performed:
- Pay funeral and burial expenses.
- Pay off the debts of the deceased.
- Determine the value or will of the deceased, if any. The will is capped at one-third of the estate, as the remainder is decided by Shariah law.
- Distribute the remainder of the estate and property to the relatives of the deceased according to Shariah Law.
Q9: How does Islamic inheritance law deal with the issue of women’s inheritance?
Answer: Islamic inheritance law generally allots women half the share of inheritance available to men if they inherit from the same father. However, there are circumstances where women might receive equal shares to men. For example, the share of the mother and father of a decedent who leaves children behind is equal. Moreover, Islamic law places the responsibility and accountability on men to provide safety, protection, and sustenance to women, which is one reason cited for the differing shares.
Q10: What role did Islamic inheritance law play in the development of Islamic mathematics?
Answer: Islamic inheritance law served as an impetus for the development of algebra by medieval Islamic mathematicians like Muhammad ibn Mūsā al-Khwārizmī. His foundational text on algebra devoted its third and longest chapter to solving problems related to Islamic inheritance using algebraic equations. This shows the intricate relationship between Islamic jurisprudence and other fields of knowledge.
Q11: What is the process for filing a suit for the declaration of legal heirs?
Answer: A suit for the declaration of legal heirs typically involves filing a civil suit in the relevant court. The plaintiffs must be the legal heirs of the deceased, and they must provide evidence to support their claim. The suit usually includes a prayer for a mandatory injunction directing the relevant authorities to transfer the property in the name of the plaintiffs as the only legal heirs of the deceased.
Q12: What happens if there are no legal heirs?
Answer: In the absence of legal heirs, the property generally escheats to the state treasury, Bayt al-mal, according to Islamic law. However, the specific rules may vary depending on the school of Islamic jurisprudence followed.
Q1: What is the legal status of a wife who has been divorced by her husband on his deathbed, according to the 2023 PLD Peshawar 88 case?
Answer: According to the 2023 PLD Peshawar 88 case, if a husband divorces his wife during his terminal illness (marz-ul-maut) and passes away before the wife’s waiting period (iddat) is completed, the wife will still be considered a legal heir in the deceased husband’s estate under both Sharia and Pakistani law.
Q2: When does the legacy of a Muslim open under Islamic Law, as per the 2023 PLD 88 Peshawar-High-Court case?
Answer: According to the 2023 PLD 88 Peshawar-High-Court case, the legacy of a Muslim under Islamic Law opens the moment he or she dies. All legal heirs who are alive on the day of the deceased’s death become entitled to their respective shares in the legacy.
Q3: What is the status of each legal heir in the property, as per the 2022 SCMR 1647 Supreme Court case?
Answer: In the 2022 SCMR 1647 Supreme Court case, it was established that each legal heir becomes a co-sharer or co-owner in the property. Inheritance under Muslim Personal Law/Islamic Law opens just after the death of a Muslim, and all legal heirs acquire their respective shares immediately, making them co-owners in the estate left by the deceased.
Q4: What happens when daughters are deprived of their share in inheritance, as per the 2022 SCMR 1394 Supreme Court case?
Answer: According to the 2022 SCMR 1394 Supreme Court case, if daughters are deprived of their share in inheritance based on prevailing custom, such exclusion is not in accordance with Islamic Sharia. All legal heirs are entitled to the estate left by their father as per their respective shares in accordance with Islamic Sharia.
Q5: What is the burden of proof when a gift is involved in inheritance, as per the 2022 SCMR 346 Supreme Court case?
Answer: In the 2022 SCMR 346 Supreme Court case, it was established that the burden to prove the legitimacy of a gift lies upon the person claiming it. If the gift is made on the very day the donor dies, it becomes extremely suspect and unreliable.
Q6: Who bears the burden of proof when laying an exclusive claim to property, as per the 2022 SCMR 13 Supreme Court case?
Answer: According to the 2022 SCMR 13 Supreme Court case, if someone lays an exclusive claim to property that is contrary to the shares determined by Sharia, the burden to establish such a claim rests on the one alleging it.
Q7: What is the entitlement of a stepbrother in inheritance under Hanafi law, as per the PLD 2018 Sindh 325 case?
Answer: In the PLD 2018 Sindh 325 case, it was clarified that under Hanafi law, a stepbrother is neither a sharer nor a residuary and therefore has no right to inherit from the estate of the deceased.
Q8: What happens if assets are not fully disclosed in a succession petition, as per the PLD 2018 Sindh 325 case?
Answer: According to the PLD 2018 Sindh 325 case, if assets are not fully disclosed in a succession petition, the court may not pass an order without holding an inquiry into the matter. However, the burden of proving non-disclosure lies on the party making the claim, and vague or general assertions without supporting material are not sufficient.
Q1: What are the legal implications of a Meharnama (dower deed) and Razinama (compromise) in depriving daughters of their inheritance, as per the 2022 SCMR 13 Supreme Court case?
Answer: According to the 2022 SCMR 13 Supreme Court case, if a stepmother claims that all property was given to her as mehr (dower) based on a Meharnama, she and her children must prove its authenticity. The case raised doubts about the Meharnama’s validity, especially when the attesting witnesses were minors. The court held that the Meharnama and Razinama could not be used to deprive legal heirs of their inheritance if their execution was not established. The daughters, who had been deprived, were entitled to their shares as determined by Islamic Shari’ah.
Q2: What is the status of a Will Deed in Islamic inheritance law, as per the 2022 YLR 2015 Quetta-High-Court-Balochistan case?
Answer: In the 2022 YLR 2015 Quetta-High-Court-Balochistan case, it was stated that a bequest to an heir under Islamic Law is not valid unless other heirs consent to it after the death of the testator. The High Court declared that the Will Deed and agreement were null and void, and the appellants were entitled to their shares from the sale consideration amount.
Q3: Is inheritance mutation essential for determining the right of succession, as per the 2021 CLC 1215 Lahore-High-Court-Lahore case?
Answer: According to the 2021 CLC 1215 Lahore-High-Court-Lahore case, inheritance mutation is not essential for determining the right of succession. Under Shariah law, the estate of a deceased Muslim automatically devolves upon legal heirs as per their shares, and this law is not subordinate to any other law, policy, or judicial pronouncements.
Q4: What is the limitation scope for correction in the revenue record concerning inheritance, as per the 2021 MLD 1146 Lahore-High-Court-Lahore case?
Answer: The 2021 MLD 1146 Lahore-High-Court-Lahore case states that no limitation runs against inheritance matters. All legal heirs become owners of the property to the extent of their respective shares upon the death of a Muslim, and this ownership cannot be taken away by unauthorized entries in the revenue record.
Q5: What is the share of a sister in inheritance, as per the 2020 SCMR 1618 Supreme Court case?
Answer: According to the 2020 SCMR 1618 Supreme Court case, a sister becomes entitled to inherit the legacy of her father from the day he dies and becomes a co-sharer/co-owner in the property. Her entitlement is based on Islamic law, and any attempt by a brother to disentitle her from her share is against Sharia and the prevailing law of inheritance in the country.
Q6: What are the requirements for proving a deed of gift involving a Pardanasheen lady, as per the 2019 CLC 1417 Lahore-High-Court-Lahore case?
Answer: In the 2019 CLC 1417 Lahore-High-Court-Lahore case, it was stated that if the existence and execution of a gift deed are questioned on the grounds of fraud and misrepresentation, the onus to prove the transaction rests upon its beneficiary. Especially when the donor is an illiterate Pardanasheen lady, the donee must prove the gift through independent and credible evidence.
Q1: What is the scope of limitation and ownership for co-sharers in inheritance matters, as per the 2018 CLC 254 Peshawar-High-Court case?
Answer: According to the 2018 CLC 254 Peshawar-High-Court case, any co-sharer in possession of joint property should be deemed as holding the possession on behalf of all co-sharers. The case establishes that no limitation would run against a co-sharer. Furthermore, every successive wrong entry in the revenue record would give a fresh cause of action, and no wrong entry could be legitimized with the efflux of time. Plaintiffs, being legal heirs, were entitled to their shares in the legacy, a right recognized by both the law of the land and Islamic Law.
Q2: What is the validity of a registered sale deed executed by a de facto guardian of Muslim minors, as per the 2017 PLD 606 Karachi-High-Court-Sindh case?
Answer: The 2017 PLD 606 Karachi-High-Court-Sindh case clarifies that the conveyance of immovable property by a de facto guardian of a Muslim minor is void and not binding on the minor. Under Islamic law, the mother of a minor is not considered a legal guardian and has no power to act on behalf of the minor. The case also establishes that if a part of a conveyance is void, the entire conveyance is void as a whole.
Q3: What are the guidelines for the distribution of rent among legal heirs, as per the 2017 PLD 318 Karachi-High-Court-Sindh case?
Answer: In the 2017 PLD 318 Karachi-High-Court-Sindh case, the High Court directed its official to prepare an inventory of all occupied and unoccupied tenements, list of tenants and/or licensees, and the quantum of rent and/or licence fee. The court also instructed its official to issue notices to all tenants and/or licensees to attend his office with relevant agreements and proof of monthly rent and/or licence fee. The court further directed that all tenants and licensees deposit the monthly rent and/or licence fee in court, which would then be distributed among all legal heirs of the deceased as per their shares under Islamic Law.
Q1: What is the status of the son of a predeceased sister in the hierarchy of legal heirs, according to the 2016 MLD 266 Karachi-High-Court-Sindh case?
Answer: In the 2016 MLD 266 Karachi-High-Court-Sindh case, the son of a predeceased sister of the deceased falls into the third category of legal heirs, known as distant kindred. The case establishes that if both sharers and residuaries are available, then distant kindred are not entitled to inherit under Islamic Law. In this particular case, both sharers and residuaries were present, so the plaintiff, being in the third category of legal heirs, was not entitled to inherit from the assets left by the deceased.
Q2: What are the fundamental principles of inheritance under Sunni fiqha, as outlined in the 2014 PLD 779 Supreme-Court case?
Answer: The 2014 PLD 779 Supreme-Court case outlines two fundamental principles of inheritance under Sunni fiqha. The first principle states that Qur’anic sharers are to be given their prescribed shares unless they are excluded by another heir according to the rules of Exclusion as prescribed in the Qur’an and Sunnah. The second principle is that after the Qur’anic sharers have received their shares, the rest of the estate is divided amongst the nearest male agnates of the deceased, known as residuaries.
Q3: What is the scope and limitation of revoking a succession certificate, as per the 2013 CLC 523 Quetta-High-Court-Balochistan case?
Answer: According to the 2013 CLC 523 Quetta-High-Court-Balochistan case, while there is no time limit prescribed for filing an application for revocation of a succession certificate under section 383 of the Succession Act, 1925, the revocation at a belated stage on the basis of an incompetently filed application is unwarranted. The case also clarifies that the Trial Court under the Succession Act, 1925, cannot determine the entitlement of legal heirs nor direct payments to them. Orders passed under the Succession Act do not operate as res judicata with regards to questions of title.
Q4: How is the Uniform Compensation Package for police officials who meet Shahadat to be distributed among legal heirs, according to the 2013 PLD 1 Peshawar-High-Court case?
Answer: The 2013 PLD 1 Peshawar-High-Court case establishes that the Uniform Compensation Package, given as death compensation to those who meet Shahadat, should be distributed amongst the Qur’anic legal heirs in accordance with Sharia. The case emphasizes that the principles of Islamic Law should be applicable for the distribution of such compensation, overriding any rule or notification.
Q1: What does the 2018 CLC 254 Peshawar-High-Court case say about the entitlement of legal heirs to their shari shares in a legacy?
Answer: The 2018 CLC 254 Peshawar-High-Court case establishes that legal heirs are entitled to their shari shares in the legacy according to Islamic Law. This applies even if the deceased died before the promulgation of the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935. The case also notes that any co-sharer in possession of joint property is deemed to be holding the possession on behalf of all co-sharers, and no limitation would run against them.
Q2: What does the 2017 PLD 606 Karachi-High-Court-Sindh case state about the validity of a registered sale deed executed by a de facto guardian of a Muslim minor?
Answer: The 2017 PLD 606 Karachi-High-Court-Sindh case rules that a conveyance of immovable property by a de facto guardian of a Muslim minor is void and not binding on the minor. Under Islamic law, the mother of a minor is not considered a legal guardian and has no power to act on behalf of the minor. The case also states that if a conveyance is void in relation to the minor, it is void as a whole.
Q3: How does the 2017 PLD 318 Karachi-High-Court-Sindh case address the distribution of rent among legal heirs?
Answer: In the 2017 PLD 318 Karachi-High-Court-Sindh case, the High Court directed its official to prepare an inventory of all occupied and unoccupied tenements, list of tenants and/or licensees, and the quantum of rent and/or licence fee. The court also instructed its official to issue notices to all tenants and licensees to deposit monthly rent and/or licence fee in court. The amount deposited would then be distributed among all legal heirs of the deceased as per their shares under Islamic Law.
Q4: What does the 2016 MLD 266 Karachi-High-Court-Sindh case say about the inheritance rights of the son of a predeceased sister?
Answer: The 2016 MLD 266 Karachi-High-Court-Sindh case states that the son of a predeceased sister falls into the third category of legal heirs, known as distant kindred. If both sharers and residuaries are available, then distant kindred are not entitled to inherit under Islamic Law. In this particular case, both sharers and residuaries were present, so the plaintiff, being in the third category of legal heirs, was not entitled to inherit from the assets left by the deceased.
Q1: What are the fundamental principles of inheritance according to Sunni fiqha as outlined in the 2014 PLD 779 Supreme Court case?
Answer: The 2014 PLD 779 Supreme Court case outlines two fundamental principles of inheritance according to Sunni fiqha. The first principle states that Qur’anic sharers are to be given their prescribed shares unless they are excluded by another heir based on the rules of Exclusion as prescribed in the Qur’an and Sunnah. The second principle states that after the Qur’anic sharers have received their shares, the remaining estate is divided among the nearest male agnates of the deceased, known as residuaries. Agnates are those related to the deceased through a male link.
Q2: What does the 2013 CLC 523 Quetta-High-Court-Balochistan case say about the revocation of a succession certificate?
Answer: The 2013 CLC 523 case states that an application for the revocation of a succession certificate can be filed, but the court cannot determine the entitlement of legal heirs or direct payments to them under the Succession Act, 1925. The case also notes that orders passed under the Succession Act do not operate as res judicata with regards to questions of title. In this specific case, the High Court set aside the order of the Trial Court and dismissed the application for revocation because it was incompetently filed and did not serve any lawful purpose.
Q3: What does the 2013 PLD 1 Peshawar-High-Court case state about the entitlement of parents to a Uniform Compensation Package?
Answer: The 2013 PLD 1 case states that the Uniform Compensation Package should be distributed amongst the Qur’anic legal heirs, including parents, in accordance with Sharia law. The court emphasised that no rules, orders, or notifications could override the supreme law laid down by Allah in the Holy Quran and the sayings of the Holy Prophet Muhammad (P.B.U.H.).
Q4: How does the 2013 PLD 1 Peshawar-High-Court case define the shares of legal heirs for an issueless male deceased?
Answer: According to the case, if the deceased male is issueless, the widow is entitled to 1/4 of the estate as a sharer. The father and mother each get 1/6 as sharers. The remaining share is received by the parents as residuaries. The widow cannot claim any share as a residuary.
Q5: What does the 2013 YLR 1304 Lahore-High-Court-Lahore case say about the validity of a consent decree under the repealed Punjab Pre-emption Act, 1913?
Answer: The case states that a consent decree under the repealed Punjab Pre-emption Act, 1913, is not assailable under Section 12(2) of the Civil Procedure Code. The court held that orders were neither contrary to the law nor perverse, and there was a concurrent finding of fact against the petitioners.
Q6: What does the 2013 CLC 370 Karachi-High-Court-Sindh case state about the succession to the estate of a deceased Muslim?
Answer: The case states that upon the death of a Muslim, the estate automatically and immediately vests in the surviving legal heirs according to their Islamic shares, without requiring any intervention or act on the part of any authority.
Q7: What does the 2012 YLR 2132 Lahore-High-Court-Lahore case say about the distribution of property among legal heirs according to Islamic Law?
Answer: The case states that a deed executed by the deceased owner to divide property among his sons is neither a gift nor a will if it excludes one or more legal heirs. Such a deed requires the consent of all deprived legal heirs. In the absence of such consent, the property must be distributed among all legal heirs in accordance with Sharia law.
2012 YLR 365 LAHORE-HIGH-COURT-LAHORE
Q: What was the main issue in the case between Anwar Shah and Mst. Fatima Bibi?
A: The main issue was the claim of ownership of 1/3rd land by the plaintiffs, who alleged that the sale deeds and mutations were fraudulent. The defendants admitted the plaintiffs as legal heirs but denied possession of the land.
Q: What was the court’s decision?
A: The court set aside the judgments of the lower courts and decreed the suit in favour of the plaintiffs. It was established that all legal heirs of the deceased would become owners of the estate according to Islamic law of inheritance.
2012 PLD 34 HIGH-COURT-AZAD-KASHMIR
Q: What was the dispute between Khalida Begum and Muhammad Rashid Khan?
A: The dispute was over the issuance of a succession certificate. Both the widow and real sister of the deceased, and his step brothers and sisters, claimed to be the legal heirs.
Q: What did the court decide?
A: The court determined that the step brothers and sisters were not uterine but consanguine, and therefore not excluded from inheritance. The judgment of the Trial Court was upheld.
2011 CLC 1231 PESHAWAR-HIGH-COURT
Q: What was the issue between Mst. Awal Jana alias Lal Jana and Mst. Totia?
A: The issue was the inheritance of suit-land. The plaintiffs were daughters who were initially excluded from inheritance under customary law.
Q: What was the court’s ruling?
A: The court upheld that the daughters were entitled to their shares in the legacy of their deceased father, as the customary law had ceased to remain in force.
2011 PLD 78 PESHAWAR-HIGH-COURT
Q: What was the dispute between Maj. (Retd,) Abdul Akbar and Mst. Maryam Khushboo?
A: The dispute was over the distribution of assets left by a deceased individual. The brother of the deceased claimed that he and his sisters were also entitled to inherit.
Q: What did the court decide?
A: The court modified the judgment according to a settlement between the parties. It was declared that all were legal heirs and entitled to the legacy according to Sharia.
2007 CLD 277 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN
Q: What does Islamic law say about ‘Constructive’ delivery in the context of Hiba (gift)?
A: Under Islamic law, the essentials of Hiba are offer, acceptance, and actual physical delivery. The concept of ‘Constructive’ delivery is not compatible with Islamic jurisprudence on this point. Actual delivery must be made for movable assets.
2006 PLD 15 SUPREME-COURT
Q: What are the powers of a Muslim donor in gifting property?
A: A Muslim donor has vast powers to alienate property by way of gift during his lifetime, provided he is in a proper state of health and the gift is made without coercion or inducement. The gift cannot be invalidated merely because it deprives heirs of their shares, unless material facts are concealed by the donee.
2006 MLD 47 PESHAWAR-HIGH-COURT
Q: What does Islamic law state about succession and the rights of co-sharers?
A: Under Shariah, succession opens upon the death of the owner, and legal heirs become entitled to their shares immediately and without condition. Physical possession by one co-sharer cannot deprive other co-sharers of their rights of ownership and possession over the property.
2006 PLD 456 LAHORE-HIGH-COURT-LAHORE
Q: How does Islamic law view the devolution of property upon death?
A: Upon the death of the original owner, the property devolves under Islamic law upon the legal heirs. The flow of rights streams into multiple units based on legal shares. Unity of title and possession in such a case cannot be questioned.
2006 CLC 1189 LAHORE-HIGH-COURT-LAHORE
Q: What is the status of a nominee in the context of Islamic Law of Inheritance?
A: The concept of a nominee is alien to Islamic Law. Legal heirs are the only persons entitled to receive the property left by the deceased. A nominee is merely authorized to collect the amount or hold the property as an administrator and then distribute it among all legal heirs.
2006 CLC 1093 KARACHI-HIGH-COURT-SINDH
Q: How does Islamic law view assets received by a widow as a ‘nominee’ or ‘joint account holder’?
A: Amounts left by the deceased, received by the widow as a ‘nominee’ or ‘joint account holder,’ devolve upon all legal heirs. All legal heirs are entitled to get their respective shares from these assets as per Islamic law of inheritance.
2006 MLD 1988 KARACHI-HIGH-COURT-SINDH
Q: What is the Islamic stance on bequeathing property to heirs through a will?
A: Under Islamic Law, a bequest to an heir is not valid without the consent of other heirs. Such consent can be inferred from their conduct. In the absence of a valid will, the Islamic Law of Inheritance applies, and all legal heirs are entitled to their respective shares.
2005 CLD 1576 LAHORE-HIGH-COURT-LAHORE
Q: How are shares determined for heirs in the absence of a will?
A: In the absence of a will, the property devolves upon the legal heirs according to the Islamic Law of Inheritance. For example, a widow inherits a 1/8th share, while sons and daughters inherit their due shares as per Islamic law.
2005 YLR 858 LAHORE-HIGH-COURT-LAHORE
Q: What happens to the property of a deceased person who leaves behind only one daughter?
A: After the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the property reverts to Muslim heirs according to their Sharai shares. In this case, the daughter would be entitled to a 1/2 share in the legacy of her deceased father.
2005 MLD 1782 LAHORE-HIGH-COURT-LAHORE
Q: Can a daughter be excluded from inheritance based on custom?
A: No, daughters cannot be excluded from inheritance based on custom. The principles of Shariah are applicable, and daughters are entitled to succeed to their shares in their father’s ancestral property in accordance with Islamic law.
2005 CLC 628 LAHORE-HIGH-COURT-LAHORE
Q: What is the Islamic law stance on the limitation period for co-sharers in inheritance?
A: A suit by co-sharers cannot be held to be barred by limitation under Islamic law. Co-sharers are considered to hold shares of other co-sharers out of possession on their behalf.
2005 PLC(CS) 1171 FEDERAL-SERVICE-TRIBUNAL
Q: Does the principle of ‘Master and Servant’ have any standing under Islamic tenets?
A: The principle of ‘Master and Servant’ does not enjoy Constitutional backing or any other law, including Islamic tenets. It is considered to be below human dignity.
2004 SCMR 1036 SUPREME-COURT
Q: What happens to the property when a deceased leaves behind a widow and daughters but no male heir?
A: In the absence of any male heir, the daughters would inherit the shares allocated to them under Islamic law, whereas the remaining property would be inherited by the collaterals of the deceased.
2003 MLD 433 LAHORE-HIGH-COURT-LAHORE
Q: How are shares in property determined between a widow and her children?
A: In this case, the High Court determined that the widow was entitled to a 1/8th share in the property, while the defendant (son) was entitled to a 14/64th share. The remaining two sons and daughters were also entitled to 14/64th and 7/64th shares respectively.
2002 YLR 3868 LAHORE-HIGH-COURT-LAHORE
Q: What is the most appropriate remedy for distribution of assets of a deceased person among his heirs?
A: A suit for administration of property is considered the most appropriate remedy for distribution of assets among heirs according to their respective shares under Islamic Law. In this case, the brother was entitled to a 3/4 share, and the widow to a 1/4 share in the estate of the deceased.
2001 SCMR 89 SUPREME-COURT
Q: Is a court’s direction to distribute property according to Islamic law generally upheld?
A: Yes, a court’s direction to make distribution in accordance with the shares of the heirs of the deceased according to Islamic law is generally upheld and considered to advance the cause of justice.
2001 CLC 1323 LAHORE-HIGH-COURT-LAHORE
Q: What happens to property if a will is found to be non-existing or revoked?
A: If a will is found to be non-existing or revoked, the property will devolve upon the parties in accordance with their Muslim Personal Law shares immediately upon the death of the testator, making them co-sharers.
2001 CLC 446 LAHORE-HIGH-COURT-LAHORE
Q: How are shares determined in the case of a gift as Diyat?
A: In this case, the High Court directed the Revenue Authorities to include the names of other legal heirs in the mutation of the suit-land according to their respective shares, even though the land was initially gifted as a Diyat.
2000 YLR 633 LAHORE-HIGH-COURT-LAHORE
Q: When does the estate of a deceased Muslim devolve upon his heirs?
A: The estate of the last male owner vests in his heirs the moment he breathes his last. Under Islamic jurisprudence, no State or individual intervention is required for such devolution.
1998 MLD 1695 LAHORE-HIGH-COURT-LAHORE
Q: What is the legal status of a compromise reached according to Islamic shares in a criminal case?
A: In this case, the legal heirs of the deceased had reached a compromise and received compensation according to Islamic shares. The court found the compromise to be voluntary and acquitted the accused.
1996 CLC 1469 LAHORE-HIGH-COURT-LAHORE
Q: How does Islamic law view contractual obligations in the context of trading shares?
A: The case highlights that contractual obligations are held in high regard under Islamic injunctions. However, the court also noted that activities such as “kerb trading” and “cornering” were not in accordance with Islamic principles, thereby justifying the court’s intervention.
1993 CLC 133 LAHORE-HIGH-COURT-LAHORE
Q: How does Islamic law of inheritance apply to female heirs in the absence of a male heir?
A: According to Islamic law, the widow of a predeceased son or the husband of a predeceased daughter would not be heirs. The distribution of land left by the last male owner would be divided in accordance with Islamic law of inheritance, supplemented by Section 4 of the Muslim Family Laws Ordinance, 1961.
1991 SCMR 2051 SUPREME-COURT
Q: Can a will that contradicts Islamic law of inheritance be overridden?
A: Yes, the court concluded that the entire property left by the predecessor should be treated and dealt with in accordance with Islamic law of inheritance, thereby overriding the will made in 1926 that did not conform to Islamic principles.
2022 YLR 2059 HIGH-COURT-AZAD-KASHMIR
Q: What happens when there is no residuary but only a sole surviving daughter?
A: In such a case, the sole surviving daughter is entitled to inherit the share in the estate of the deceased as per Islamic law. By the principle of radd, she would also take the remainder, effectively inheriting the whole estate.
2021 CLC 1821 ISLAMABAD
Q: Are grandchildren entitled to inherit from their grandparents under Islamic law?
A: Generally, distant kindred, including grandchildren, are not entitled to inherit so long as there is any heir belonging to the class of sharers or residuaries. Section 4 of the Muslim Family Laws Ordinance, 1961, is an exception to this principle, allowing only the sons and daughters (children of predeceased sons and daughters) to inherit from their grandparents as per stripes, i.e., the share their father or mother was entitled to inherit.
2019 PLD 461 SUPREME-COURT
Q: Can the right to compound an offence under Ta’zir be inherited?
A: Yes, the right to compound the offence of qatl-i-amd under Section 345(2) of the Cr.P.C. is inheritable. It vests in the “heirs of the victim” and is also considered an actionable claim. The heirship is based on blood and marriage and continues as families evolve. The available heirship is determined afresh when the right to compound is exercised, irrespective of the time of death of the victim.
2016 MLD 266 KARACHI-HIGH-COURT-SINDH
Q: Are distant kindred entitled to inherit if sharers and residuaries are available?
A: No, if both sharers and residuaries are available, distant kindred are not entitled to a share under Islamic law. In this case, the son of a predeceased sister of the deceased was considered distant kindred and was not entitled to inherit due to the presence of sharers and residuaries.
2015 YLR 2014 LAHORE-HIGH-COURT-LAHORE
Q: What happens to the property of a deceased person who leaves behind only a mother?
A: According to Islamic law, the property of the deceased would revert to the mother under the principle of Return (radd) if there are no other sharers or residuaries. In this case, the mother would inherit 1/3rd of the legacy as a sharer, and the remaining 2/3rd would also revert to her.
2007 PLD 121 LAHORE-HIGH-COURT-LAHORE
Q: Who are considered the legal heirs for the purpose of Qisas and Diyat?
A: Under Section 305 of the P.P.C., the heirs of the victim are to be the Wali of the victim according to their personal law. In this case, the heirship was determined at the time of the victim’s death, and only the parents were considered legal heirs. Consanguine sisters were not considered legal heirs of the deceased but rather heirs of the father of the deceased.
Doctrine of Radd
2022 YLR 2059 HIGH-COURT-AZAD-KASHMIR
Q: What happens when there is no residuary, but only a sole surviving daughter?
A: In the absence of any sharer by blood, residuary, or distant kindred, a sole surviving daughter is entitled to inherit the entire estate of the deceased. This is in accordance with Islamic Law and the principle of Radd, which allows the daughter to take the remainder of the estate.
2018 MLD 2079 KARACHI-HIGH-COURT-SINDH
Q: How does the doctrine of Radd apply when the deceased is survived by only daughters and no sons?
A: If the deceased had no sons but only daughters, the daughters would fall into the category of sharers and inherit two-thirds (2/3) of the estate. If there are no residuaries, the remaining one-third (1/3) of the estate would return to the daughters as sharers under the doctrine of Radd. In such cases, the daughters would inherit the entire estate.
2015 YLR 2014 LAHORE-HIGH-COURT-LAHORE
Q: What happens to the property of a deceased person who leaves behind only a mother?
A: According to Islamic Law, the property of the deceased would revert to the mother under the principle of Radd if there are no other sharers or residuaries. The mother would inherit one-third (1/3) of the legacy as a sharer, and the remaining two-thirds (2/3) would also revert to her.
Correction in Revenue Record / Not Time-Barred?
2021 MLD 1146 LAHORE-HIGH-COURT-LAHORE
Q: Is there a time limitation for correcting inheritance matters in the revenue record?
A: No, there is no time limitation for inheritance matters. All legal heirs become absolute owners of their respective shares in the estate of the deceased according to Sharia law, the moment the predecessor-in-interest dies. Any unauthorized entry into the revenue record cannot take away this ownership. Registration and sanctioning of mutation of inheritance are mere formalities to update the official record. Therefore, no limitation runs against inheritance matters.
Women’s rights of property and Islam (cases)
The cases below touch upon various aspects of women’s rights in property and inheritance under Pakistani law.
I’ll provide an analysis of each case’s implications for women’s property rights.
- 2013 SCMR 299 SUPREME-COURT: This case highlights the importance of challenging mutations of inheritance in a timely manner. It doesn’t directly address women’s rights but does set a precedent that could affect women who may not have been aware of their rights or were unable to challenge mutations during their lifetime.
- 2014 YLR 553 QUETTA-HIGH-COURT-BALOCHISTAN: This case emphasises that time does not affect a right of inheritance. It suggests that women, as legal heirs, would become co-owners and co-sharers of property left by the deceased, irrespective of who is in possession.
- 2021 CLC 1506 PESHAWAR-HIGH-COURT: This case also touches upon the issue of timeliness in challenging mutations of inheritance. It suggests that if a legal heir, potentially a woman, does not challenge her deprivation from legacy for a considerable period, further legal heirs may not have the locus standi to challenge it later.
- 2022 PTD 1510 LAHORE-HIGH-COURT-LAHORE: This case clarifies that mutations do not confer property rights and that inheritance becomes a fait accompli upon the death of the predecessor. This is significant for women as it means their inheritance rights are automatic and not dependent on mutations.
- 2022 CLC 1955 ISLAMABAD: These cases focus on the jurisdiction of the Federal Ombudsperson in matters related to women’s property rights. They clarify the conditions under which a woman can file a complaint under the Enforcement of Women’s Property Rights Act, 2020.
- 2019 PLD 218 SUPREME-COURT: This case criticises the lack of representation for women in traditional dispute resolution forums like jirgas and panchayats, emphasising the need for equal access to justice for women.
- 2018 PLD 819 LAHORE-HIGH-COURT-LAHORE: This case obliges courts to exercise extraordinary caution when dealing with cases that involve the alienation of women from their inheritance rights.
- 2017 CLC 277 PESHAWAR-HIGH-COURT: This case places the burden of proof on the person claiming benefit from transactions involving vulnerable groups, including women.
- 2017 CLC 1601 LAHORE-HIGH-COURT-LAHORE: This case emphasises that Islam has determined the share of women in inheritance and that such rights cannot be taken away through deceitful and fraudulent acts.
- 2006 SCMR 512 SUPREME-COURT: This case emphasises the Supreme Court’s commitment to protecting the property rights of women and suggests that delay in lodging an FIR is not necessarily fatal to a case involving women’s property rights.
In summary, these cases collectively indicate a legal landscape that is increasingly cognisant of the need to protect and uphold women’s property rights, although challenges remain, particularly in the context of timeliness and traditional dispute resolution mechanisms.
The cases above reflect an evolving judicial understanding that aims to align with international human rights standards and Islamic principles, both of which advocate for the protection of women’s rights, including property rights.
The cases involving the Federal Ombudsperson and the Enforcement of Women’s Property Rights Act, 2020, are particularly noteworthy. They set out the legal framework and jurisdictional boundaries for women to seek redress for violations of their property rights. This is a significant step forward, as it provides women with a specific avenue for legal recourse, although the jurisdictional limitations do pose challenges.
The case from the Supreme Court that criticises traditional dispute resolution mechanisms like jirgas and panchayats for their lack of female representation is also significant. It highlights systemic issues that can impede women’s access to justice, particularly in rural areas where such traditional mechanisms are more prevalent.
Moreover, the Lahore High Court’s emphasis on the courts’ obligation to exercise “extraordinary circumspection, care and caution” in matters involving the alienation of women’s property rights indicates a judicial willingness to scrutinise transactions that may be rooted in patriarchal customs or fraudulent activities.
The Peshawar High Court case that places the burden of proof on those claiming benefit from transactions involving vulnerable groups, including women, is a crucial safeguard. It serves as a countermeasure to the social and cultural pressures that may otherwise compel women to relinquish their property rights.
Lastly, the Federal Shariat Court’s ruling that any law allowing the character of a woman to be impeached in rape cases is repugnant to Islamic injunctions is a landmark decision. While not directly related to property rights, it underscores the broader commitment to upholding the dignity and rights of women in legal proceedings.
In conclusion, while challenges remain, these cases collectively signify a positive shift towards the recognition and enforcement of women’s property rights in Pakistan. They reflect a multi-faceted approach that incorporates legislative action, judicial interpretation, and alignment with international and Islamic principles to address the complexities surrounding women’s property rights.
Inheritance Laws Based on Religion:
The subject of property and inheritance law in Pakistan is indeed complex, owing to the diverse religious and cultural norms that are embedded within the legal framework. In a pluralistic society like Pakistan, the inheritance laws are tailored to respect the religious affiliations of the deceased, making it a unique jurisdiction in that regard.
The allocation of inheritance rights in Pakistan is largely determined by the religion of the deceased. For Muslims, Islamic jurisprudence takes precedence. Specific schools of thought within Islam may further influence the division of assets among heirs. In contrast, non-Muslims are generally subject to their own religious laws or potentially the laws of the country where they were domiciled, although this varies and may depend on bilateral treaties or specific circumstances.
Jurisdiction:
The competent courts to handle inheritance matters are determined by the last domicile of the deceased. However, if the domicile is contested or unknown, jurisdiction falls to the location of the property. Typically, the Civil District Court or High Court is responsible for these matters.
Foreign Nationals and Inheritance:
For non-Muslim foreigners, the inheritance laws of their home country may apply if they are domiciled outside Pakistan. This is particularly relevant for Hindus and Christians who hold assets in Pakistan.
Muslims and Inheritance:
Muslims, irrespective of their nationality or domicile, are subject to Islamic inheritance laws when it comes to property situated in Pakistan. The Islamic laws of inheritance are quite detailed and vary depending on the number and type of surviving relatives. Generally, male heirs receive twice the share of female heirs, and there are specific provisions for spouses, parents, and other relatives.
Vested Inheritance:
In Islamic inheritance law, vested inheritance is a unique feature. Heirs acquire an absolute interest in their specific shares even before distribution occurs. If an heir predeceases the distribution but was alive at the time of the ancestor’s death, their share passes to their own heirs.
Lifetime Gifts and Donations:
Muslims in Pakistan have the right to donate property during their lifetime, and such decisions cannot be contested posthumously by heirs.
Registration and Official Records:
All property transactions, including transfers and inheritances, must be properly registered with the appropriate authorities. These records serve as the primary evidence for legal ownership in Pakistan.
General Guidance:
While this overview provides a broad understanding of property and inheritance laws in Pakistan, it is essential to consult with experienced legal professionals for case-specific advice. At Josh and Mak International, we offer comprehensive legal services to navigate the complexities of property transactions and inheritance matters, ensuring that all legal obligations are met.
In summary, the landscape of property and inheritance law in Pakistan is multifaceted and demands a meticulous approach for both local and international stakeholders. Therefore, professional legal advice is not just advisable but often essential for safeguarding one’s interests.
